Courts struggle with cellphone privacy

Courts from California to Rhode Island are far from reaching a consensus on how to balance digital privacy expectations with law enforcement operational needs, The New York Times reported Monday.

The abundance of personal information available on a person’s cellphone, which ranges from location data to personal messages and social networking information, make the devices attractive pieces of potential evidence for law enforcement. However, privacy advocates argue that the information contained on a cellphone is constitutionally protected personal and private data, while law enforcement agencies insist it is actually the property of the wireless carrier.

Now the debate has gone to the courts. In several cases, investigations have been put in jeopardy due to a lack of clearly defined rules pertaining to information obtained on electronic devices such as cellphones.

“A Rhode Island judge threw out cellphone evidence that led to a man being charged with the murder of a 6-year-old boy, saying the police needed a search warrant,” reported The New York Times. However, a Washington court ruled text messages, like voice mail messages, can be overheard by anyone and are not protected by state privacy laws.

In recent years, there have been several well-documented cases in which telecom carriers have allowed government agencies to track the private communications of suspected criminals and terrorists without a warrant. Courts have routinely ruled that such cooperation is legal, much to the dismay of privacy advocates.

Law enforcement agencies say that new restrictions on their ability to tap in to digital information could result in them “going dark” as more criminal communications begin take place online and through text messages.

“The inability of courts to reach consensus over the use of a suspects cellphone location data is due to a lack of a federal statute,” The New York Times said, stating that a federal appeals court in Texas ruled that law enforcement officials “did not need a warrant to track suspects through cellphones.”

The issue can be a toxic one for lawmakers, who are regularly petitioned by cellphone industry representatives, privacy advocates and law enforcement alike as Congress considers revising 1980s-era laws to update privacy protections for the digital age.

Last week, a report that Senator Patrick Leahy was considering a bill that would allow law enforcement agencies to engage in warrantless electronic surveillance was met with outrage from privacy advocates. Leahy vigorously denied the report on Twitter and his website, and said that he would oppose such a measure.

A vote on the bill — which would amend the 1988 Video Privacy Protection Act, and the 1986 Electronic Communications Privacy Act (ECPA) — is expected Thursday during the Senate Judiciary Committee’s Executive Business meeting.